How EU can confront the ‘Copenhagen dilemma’



The European Union is founded on a set of common principles of democracy, the rule of law, and fundamental rights. But whereas candidate Member States are vetted for their compliance with these values before they accede to the Union, no similar method exists to supervise adherence to these principles after accession, notes the Centre for European Policy Studies (CEPS).

Recent developments in Hungary and Poland demonstrate that this ‘Copenhagen dilemma’ is far from theoretical.

EU Member State governments’ adherence to foundational EU values cannot be taken for granted, says a new CEPS research paper, An EU mechanism on Democracy, the Rule of Law and Fundamental Rights, by Petra Bárd, Sergio Carrera, Elspeth Guild, Dimitry Kochenov and Wim Marneffe:

The European Union (EU) received its core values at its inception: achieving peace and prosperity, the immediate goals of integration still with us since the times of the Schuman declaration, had a strong implied liberty component. Dictatorships and any countries which were not ‘free’ were not welcome to join the Union. Notwithstanding the fact that democracy and the rule of law were not part of the black letter law of the Communities for a long time, both have clearly been regarded as important unwritten principles, which became codified thanks to the pre-accession strategy in the context of the preparation of the ‘big-bang’ enlargement to the east of the continent. Currently there is Treaty basis behind EU values, such as democracy, the rule of law, and fundamental rights, which are entrenched in Article 2 of the Treaty on the European Union (TEU). Future Member States are vetted for their compliance with these values before they accede to the Union. The so-called ‘Copenhagen criteria’ ensure that all new EU Member States are in line with the Union’s common principles before joining the EU. That notwithstanding, no similar method exists to supervise adherence to these foundational principles after accession. This has been referred to as the ‘Copenhagen dilemma’.

The Research Paper systemized possible stages of respect for European values and identified three scenarios:

In the first scenario, the boundaries of democracy, the rule of law and fundamental rights are correctly set by national constitutional law and domestic bills of rights, whereas the enforcement of the values is first and foremost the task of the domestic courts, but other checks and balances are also operating well and fulfil their function. In this scenario an external mechanism is not vital but can have an added value.

In a second scenario, a Member State still adhering to democracy, the rule of law and fundamental rights might be in violation of individual rights, due to individual mistakes or structural and recurrent problems. In such cases, as a general rule, if domestic mechanisms (such as a constitutional court, civil society or media pressure) are incapable of solving the problem, the national law will be overwritten by international law and deficiencies in application of the law will be remedied to some extent by international apex courts. In other cases chronically lacking capacity to solve systemic problems such as corruption, international norms and fora cannot remedy the problems but can point to them and contribute to domestic efforts to tackle them.

The third scenario is qualitatively different from the previous two. Without going into the details, this is the state of a constitutional capture with a systemic breach of separation of powers, constitutional adjudication, failure of the ordinary judiciary and the ombudsman system, civil society or the media. Before reaching that stage, the country on its way towards the third scenario, in a state of so-called rule of law backsliding shall be warned and a constitutional capture be prevented.

Constitutional capture

In a democracy based on the rule of law, built-in correction mechanisms and sites of resistance compensate for the deficiencies of a majoritarian government, such as the concept of separation of powers, checks and balances, emphasis on independent judicial control, media freedom, etc., the authors note:

In a country where domestic checks fails, solely the control mechanism of international law including supranational courts protecting the rule of law is left. Accordingly, international and EU norms and enforcement mechanisms shall be regarded as external tools of militant democracy whereby the people are granted protection against their substandard representatives, when all domestic channels of criticism have been effectively silenced and all domestic safeguards of democracy become inoperational – in short, when the rule of law has been efficiently deconstructed in a state of constitutional capture.


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